United States District Court, S.D. Florida, Miami Division
ALEYMER IZQUIDERO, on behalf of himself and all employees similarly situated, Plaintiff,
SOLAR BEAR SERVICES, INC., Defendant.
P. GAYLES UNITED STATES DISTRICT JUDGE.
CAUSE came before the Court upon Plaintiffs' Motion to
Authorize Notice to Potential Class Members (the
“Motion”) [D.E. 30]. The Court has considered the
Motion and the record, and is otherwise fully advised. For
the reasons set forth below, the Motion is granted in part.
Aleymer Izquierdo (“Plaintiff”) brought this
action against Defendant Solar Bear Services, Inc.
(“Defendant”) for failure to compensate him and
similarly situated employees overtime compensation in
violation of the Fair Labor Standards Act, 29 U.S.C.
§201, et seq. (“FLSA”). Plaintiff
alleges that (1) Defendant employed him as an air
conditioning technician, (2) he regularly worked over 40
hours per week, and (3) he was paid on a piece rate basis,
receiving a specific amount of money from the company per
installation as opposed to the number of hours worked. On
November 14, 2016, Plaintiff filed the Motion seeking to
certify a class consisting of “[a]ll current and former
Solar Bear Air Conditioning Installers and Installation
Helpers who worked at the company's Miami, Florida
locations: 2013 N.W. 84th Avenue, Doral, Florida 33122 or
10125 N.W. 116th Way, Suite 10, Medley, Florida 33178 for any
length of time since June 28, 2013.” [ECF No. 30-2]. In
support, Plaintiff relies on multiple notices of consent to
join and declarations. [ECF Nos. 6, 23, 24, 27, 28, 29,
30-3]. Defendant opposes the Motion, asserting Plaintiff has
not met his burden of proof in order for the Court to certify
Legal Standard for Conditional Class Certification.
FLSA permits a plaintiff to bring a collective action on
behalf of himself and other similarly situated employees.
See 29 U.S.C. § 216(b). The purposes of §
216(b) collective actions are “(1) reducing the burden
on plaintiffs through the pooling of resources, and (2)
efficiently resolving common issues of law and fact that
arise from the same illegal conduct.” Morgan v.
Family Dollar Stores, Inc., 551 F.3d 1233, 1264-65 (11th
Cir. 2008) (citing Hoffman-La Rouche, Inc. v.
Sperling, 493 U.S. 165, 170 (1989)). A class action
brought under the FLSA, unlike a class action pursuant under
Rule 23 of the Federal Rules of Civil Procedure, includes
only those plaintiffs who affirmatively opt-in to the action
by filing their consent in writing to the court in which the
action is brought. See 29 U.S.C. § 216(b);
see also De Leon-Granados v. Eller & Sons Trees,
Inc., 497 F.3d 1214 (11th Cir. 2007). The decision to
certify the action does not create a class of plaintiffs.
Rather, the existence of a collective action under §
216(b) depends on the active participation of other
plaintiffs. See Albritton v. Cagle's, 508 F.3d
1012, 1017 (11th Cir. 2007). The benefits of a collective
action “depend on employees receiving accurate and
timely notice… so that they can make informed
decisions about whether to participate.” Id.
(citing Sperling, 493 U.S. at 170). It is solely
within the Court's discretion to grant conditional
certification. Hipp v. Liberty Nat'l Life Ins.
Co., 252 F.3d 1208, 1219 (11th Cir. 2001).
Eleventh Circuit has sanctioned a two-stage approach to
manage § 216(b) actions. Morgan, 551 F.3d at
1260. The first stage is commonly called the “notice
stage” or “conditional certification.”
Hipp, 252 F.3d at 1214. If the Court approves
conditional certification, putative class members receive
notice of the action and the opportunity to opt-in.
Id. Regarding this first stage the Eleventh Circuit
At the notice stage, the district court makes a decision -
usually based only on the pleadings and any affidavits which
have been submitted - whether notice of the action should be
given to potential class members. Because the court has
minimal evidence, this determination is made using a
fairly lenient standard, and typically results in
“conditional certification” of a representative
Id. (emphasis added). The second stage occurs if the
Defendant moves to decertify the class, typically near the
end or close of discovery. Morgan, 551 F.3d at 1261.
At this stage of the litigation, the Court can make a more
informed decision. Id. As a result, this stage is
“less lenient, and the Plaintiff bears a heavier
burden.” Id. (citing Anderson v.
Cagle's, Inc., 488 F.3d 945, 953 (11th Cir. 2008).
grant conditional certification, the Court must find that
there are other employees who (1) desire to opt-in to the
action, and who (2) are “similarly situated” with
regard to their job requirements and pay provisions. See
Dybach v. Fla. Dep't of Corr., 942 F.2d 1562,
1567-68 (11th Cir. 1991); see also Bennett v. Hayes
Robertson Group, Inc., 880 F.Supp.2d 1270, 1282-83 (S.D.
Fla. 2012). A plaintiff has the burden of showing a
“reasonable basis” for his claim that there are
other similarly situated employees who wish to opt-in.
Morgan, 551 F.3d at 1260. “If the plaintiff
does not satisfy his burden, the Court should decline
certification of a collective action to ‘avoid the
“stirring up” of litigation through unwarranted
solicitation.'” Bedoya v. Aventura Limousine
& Transportation Service, Inc., Case No.
11-CIV-24432, 2012 WL 1933553 at *5 (S.D. Fla. Apr. 10, 2012)
(citing White v. Osmose, Inc., 204 F.Supp.2d 1309,
1318 (M.D. Ala. 2002)).
burden to show that there are other “potential opt-ins
is not onerous.” Rojas v. Garda CL Southeast,
Inc., No. 13-CV-23173, 2013 WL 6834657, at *9 (S.D. Fla.
Dec. 23, 2013). “[T]he existence of just one other
co-worker who desires to join in is sufficient to
‘rais[e] the Plaintiff's contention beyond one of
pure speculation.'” Bennett, 880 F.Supp.
at 1283 (quoting Guerra v. Big Johnson Concrete Pumping,
Inc., 2006 WL 2290512, at *4 (S.D. Fla May 17, 2006))
(holding evidence that at least one other employee desires to
opt-in is the “minimum quantum of evidence”
necessary to raise plaintiff's claim beyond one of pure
speculation). Courts have conditionally certified classes
with as few as two affidavits from potential plaintiffs.
See Wynder v. Applied Card Sys., Inc., No 09-80004,
2009 WL 3255585, at *3 (S.D. Fla. Oct. 7, 2009). However,
there must be more than “counsel's unsupported
assertions that FLSA violations [are] widespread and that the
additional plaintiffs would come” forward.
Morgan, 551 F.3d at 1260-61 (citing Haynes v.
Singer Co., 696 F.2d 884, 887 (11th Cir. 1983)).
support of certification, Plaintiff filed eleven notices of
consent to join. [ECF No. 6, 23, 24, 27, 28, 29, 30-3]. This
is more than sufficient to find that there are other